[175 NJSuper Page 14] Defendant, who is indicted on charges of possession of a dangerous weapon, assault with a dangerous weapon and atrocious assault and battery, submitted to a polygraph test administered by the prosecutor's office. Prior to the test defendant and the prosecutor signed an "Agreement and Stipulation" a form prepared by the prosecutor's office, in which it was agreed that the results of the examination would be admissible in evidence at trial of the accused. The form further provided that the results of the polygraph examination would be admissible through the opinion testimony of Lt. James Hoffman, the polygraphist and that
. . . the defendant will not offer testimony of any witness other than Lt. James Hoffman to interpret the test results obtained by Lt. James Hoffman during the polygraph examination.
Before signing the agreement defendant had waived in writing his right to counsel.
Defendant now seeks to suppress the results of the polygraph examination or alternately, to offer his own expert's interpretation of the results. The State argues that defendant has waived his right to call a rebuttal witness, that the waiver was knowingly and voluntarily made, and that it should be enforced.
It is the opinion of this court that whether a waiver was knowingly and voluntarily made, that part of the stipulation which precludes defendant from submitting an independent evaluation of polygraph results violates principles of fundamental fairness and should not be given effect. Cf. State v. Baskerville , 73 N.J. 230, 234 (1977).
Prior to 1972 polygraph evidence was absolutely inadmissible in a criminal case in the state of New Jersey. In that year our Supreme Court relaxed the rule of total exclusion and held that the results of a polygraph test may be introduced at a criminal trial if, prior to the test, defendant and the prosecutor have entered into a proper stipulation to that effect. State v. McDavitt , 62 N.J. 36 (1972). The court ruled that such a stipulation must be "clear, unequivocal and complete, freely entered into with full knowledge of the right to refuse the test and the consequences involved in taking it." Id. at 46.
The Appellate Division in 1976 further defined the criteria of a proper stipulation:
In other words, it must be agreed that the results of the examination will be received "upon an offer by either party, irrespective of the result." Id. at 579.
The court in Smith, supra , suggested that the "surest way" to accomplish the objective set forth in McDavitt, supra , was
. . . to include among [the] provisions a specific agreement that the results of the testing as expressed in the opinion of experts , whether inculpatory or exculpatory, may be introduced as evidence by either party to the stipulation." [at 580, emphasis supplied]
Clearly, the specific agreement in the present case, which would allow only the State examiner to present and interpret the polygraph results to the factfinder, denies the ...